Recorded Webinar: Capacity in the Elderly and Lawyers Professional Conduct Obligations

Capacity to do what is the first question, because capacity issues arise every time you are acting for a client with some form of cognitive impairment. It’s not just about the will - the question arises every time you receive instructions. It arises when your client is said to have lost capacity. Capacity also raises issues of professional conduct: should you act on the instructions or not? Get it wrong and you might find yourself in hot water with the regulator. This presentation will cover:

• Capacity and willmaking:
  • the Banks and Goodfellow test - has the law developed at all?
  • the duty to make the will - where it stands today
• Making an enduring power of attorney:
  • what is the test of capacity for an EPOA?
  • do you have a duty to make the power if possible?
• Taking instructions on other matters - determining the test
• Practical guidance in assessing capacity:
  • checklists and guidelines - does box ticking help - and do you have a choice?
  • meeting the client - in the absence of relatives
  • tell-tale signs of capacity loss
• Capacity is a legal test - what is the role of the medical profession in assessing capacity?
  • when should you have the client seek a medical opinion?
  • what questions should you ask the doctor and how?
• Capacity and professional misconduct:
  • what the professional conduct rules tell us
  • likely sanctions for breach
  • case law on the issue
  • practical steps to stay out of trouble